Law Times

Law TiMes • March 3, 2014 Page 13 www.lawtimesnews.com FEDERAL COURT OF APPEAL Employment Insurance DECISIONS OF UMPIRE Commission finally determined allocation of severance and vacation pay correctly Applicant was laid off from job and received amount as sever- ance pay. Applicant attended Canada Employment Insurance Commission and informed com- mission he received severance payment and amount for vaca- tion pay. Applicant was told he would have to wait to apply for benefits. Applicant was subse- quently told he would qualify immediately for benefits and new application was antedated. Ap- plicant tried to return cheques he received, because he knew he had to wait because of severance pay. Applicant was informed he could not return cheques. Com- mission used wrong amount of average of normal weekly earn- ings from employment in calcu- lating number of weeks applicant would have to wait to collect benefits with result that number of weeks was less than it would have been if correct amount were used. Commission determined applicant had debt to commis- sion and debt was paid. Com- mission made determination of how severance and vacation pay should have been allocated and applicant should have waited an- other 11 weeks before receiving benefits. Applicant was found to be entitled to receive benefits for 52 weeks, but timing for payment was delayed because he received severance and vacation pay. Board of referees dismissed ap- plicant's appeal on basis that final determination was correct. Um- pire dismissed appeal. Applicant sought judicial review. Applica- tion dismissed. Commission finally determined allocation of severance amount and vacation pay correctly and in accordance with legislative provisions. ere was no basis to interfere with de- cision of umpire. Robinson v. Canada (Attorney General) (Oct. 29, 2013, F.C.A., David Stratas J.A., Wyman W. Webb J.A., and D.G. Near J.A., File No. A-453-12) 234 A.C.W.S. (3d) 929. Prisons INMATES' RIGHTS Incumbent on Minister to explain decision different from one that largely favoured transfer Minister appealed decision of Federal Court setting aside re- fusal of accused's request to be transferred from United States prison to Canada. Federal Court set aside Minister's refusal of ac- cused's request to be transferred from United States prison to Canada. Federal Court found that Minister's decision was un- reasonable. In Federal Court's view, record before Minister re- quired him to give better expla- nation why accused's request for transfer should be rejected. As well, Federal Court found that Minister applied unreasonably factors International Transfer of Offenders Act (Can.) required him to consider. Parties agree that Federal Court correctly se- lected reasonableness as stan- dard of review but disagreed on whether Federal Court applied that standard correctly. Minister argued it reasonably found that accused le Canada with inten- tion of abandoning Canada as his place of permanent residence under s. 10(1)(b) of Act and that alone was sufficient reason for Minister to refuse to grant trans- fer. Appeal dismissed with costs, fixed at $2,500 as agreed by par- ties. Reading that exalted aban- donment factor under s. 10(1) (b) of Act above all other s. 10 factors was not reasonable read- ing of Act. It was true that in par- ticular cases Minister may find that s. 10(1)(b) factor deserved significant weight but had that been Minister's view in this case, court would nevertheless have found that it was incumbent on Minister to consider other s. 10 factors and explain why he was reaching decision different from assessments made by Director of International Transfer Unit of Corrections Canada that largely favoured transfer. Carrera v. Canada (Minister of Public Safety) (Dec. 2, 2013, F.C.A., Evans J.A., David Stra- tas J.A., and Webb J.A., File No. A-266-13) Decision at 108 W.C.B. (2d) 406 was affirmed. 110 W.C.B. (2d) 567. FEDERAL COURT Aboriginal Peoples CROWN RELATIONSHIP Appellant failed to distribute assets and follow orders Appellant was appointed ad- ministrator of estate of uncle, an Indian, who died without will and whose main assets included two undivided parcels of land on reserve. Sixteen years aer ap- pellant's appointment, estate and land remained undivided among heirs. Minister ordered appel- lant's removal under s. 43 Indian Act (Can.), for failure to fulfill du- ties, despite numerous requests by department and complaints by heirs. Appellant maintained undivided land was issue unique to reserves and he was seeking to obtain consensus among heirs to reach agreement that would al- low land to remain for family use. Appeal from Minister's decision ordering appellant's removal. Ap- peal dismissed. Minister had dis- cretionary authority to remove administrators under s. 43 and jurisprudence established stan- dard of review was reasonable- ness. Minister applied manual in determining removal was justi- fied and, over the years, com- municated concerns to appellant, advised him of complaints, gave him deadlines to complete land transfers and warned non-com- pliance would lead to his removal. Aer receiving complaint letter signed by all heirs except appel- lant's mother, Minister even gave appellant one additional year to achieve consensus before order- ing his removal. Minister did his best to support appellant over 16 years, but appellant failed to dis- tribute assets and follow orders as required under Indian Estates Regulations (Can.). Appellant was fully advised of complaints, basis for removal and given time to comply. Minister's task was to determine whether administra- tor was exercising duties, not give appellant opportunity to address complainants' allegations. Appel- lant was afforded procedural fair- ness and decision was reasonable. Longboat v. Canada (Attorney General) (Nov. 18, 2013, F.C., Glennys L. McVeigh J., File No. T-1608-11) 234 A.C.W.S. (3d) 816. Citizenship LOSS OF CITIZENSHIP Court could not stay action despite extraordinary and totally unexplained delay Motion by Minister for summary judgment and declaration that defendant obtained Canadian citizenship by false representa- tion. Applicant became perma- nent resident of Canada in 1997. Applicant applied for citizenship in December 2000. In 2002, de- fendant was convicted of uttering threats, possessing weapon and failure to comply with recog- nizance and was placed under probation order. In July 2002, defendant provided his finger- prints to Toronto Citizenship of- fice. In October 2002, defendant was charged by Toronto Police with possession of controlled substance, possession of prop- erty obtained by crime, failure to comply with recognizance and of carrying concealed weapon. In January 2003, defendant at- tended citizenship hearing, and signed attestation stating that statements made were true and correct and he confirmed that he had not been subject to immi- gration or criminal proceedings since filing application for citi- zenship. Defendant was granted citizenship in March 2003. In January 2005, defendant was convicted of robbery, aggravated assault and the. In January 2006, defendant was charged by Toron- to Police with making false state- ment for citizenship and defen- dant pleaded guilty to charge. On December 19, 2011, defendant was served with Notice in Re- spect of Revocation of Citizen- ship. Minister provided no ex- planation for more than five-year delay in taking that action aer guilty plea. Defendant contended that Minister's delay constituted abuse of process, thereby render- ing proceedings unfair. Minister's motion for summary judgment granted; court declared that re- spondent obtained Canadian cit- izenship by false representation or fraud knowingly concealing material circumstances. In order to be considered abuse of process, there must be evidence that delay directly caused significant preju- dice to amount to abuse of pro- cess. Defendant here offered no evidence of impact delay had on him. Given absence of evidence of impact of delay on defendant, despite extraordinary and totally unexplained delay by Minister, court could not conclude that this action ought to be stayed. Canada (Minister of Citizenship and Immigration) v. Bilalov (Aug. 21, 2013, F.C., Russel W. Zinn J., File No. T-1688-12) 234 A.C.W.S. (3d) 842. QUALIFICATIONS Prior issuance of passport not binding when conditions prescribed by law not met Parents employed by foreign state. Individual was person who was born in Ontario in 1956, while his father was working for foreign state. Individual obtained Canadian passport around 1991 by presenting Ontario birth cer- tificate at Canadian Embassy in another country. Individual renewed his passport in 1997, 2002, and 2007. One of individu- al's children was denied passport in 2007 on basis that individual was not Canadian citizen due to his father having been foreign diplomat when individual was born. Individual applied to re- new his own passport in 2012. Passport Canada revoked indi- vidual's passport on basis that individual was not Canadian citizen. Individual brought ap- plication for judicial review. Ap- plication dismissed. Right to hold Canadian passport arose from citizenship that could only be granted in accordance with Citi- zenship Act (Can.). In this case, when Passport Canada issued prior passports, it did so based on mistaken belief that individ- ual was Canadian citizen. When conditions prescribed by law were not met, prior issuance of passport was not binding. Delay in revoking individual's passport did not amount to abuse of pro- cess. ere had not been breach of procedural fairness. Passport Canada had subsequently con- firmed that both of individual's parents had been employed by foreign state at time of individu- al's birth so fact that individual's father had not actually been dip- lomat had no effect on outcome. ere was no basis for claim of legitimate expectation that indi- vidual would receive Canadian passport. Pavicevic v. Canada (Attorney General) (Sep. 27, 2013, F.C., Cecily Y. Strickland J., File No. T-1419-12) 234 A.C.W.S. (3d) 930. Damages INVASION OF PRIVACY Respondent violated applicant's privacy rights by conducting credit check without prior consent On December 1, 2010, applicant ordered satellite television service from respondent. Applicant was first-time customer and had no credit history with respondent. When service was installed on December 31, 2010, applicant was required to provide his sig- nature on what was known as proof of delivery device. Appli- cant believed that he was simply confirming delivery of satellite system. Respondent embedded signature on TV rental agree- ment, which authorized it to per- form credit checks on customer. Aer service was installed, ap- plicant ordered his credit report, at which time he learned that re- spondent had accessed his credit history on December 1, 2010. Applicant filed complaint with Privacy Commissioner. Privacy Commissioner found complaint to be "well-founded". Applicant applied for damages pursuant to s. 14(1) of Personal Informa- tion Protection and Electronic Documents Act (Can.). Appli- cant claimed $20,000 for breach of privacy and his Charter rights as well as aggravated damages for emotional pain, anguish, anxi- ety and humiliation and puni- tive damages. Respondent did not appear. Application allowed. Respondent violated applicant's privacy rights under Act by con- ducting credit check without his prior consent. Hard check con- ducted by respondent had ad- verse consequences as it began route to lowering person's credit score. Applicant was awarded damages of $10,000. Applicant was also awarded exemplary damages of $10,000 for respon- dent's conduct at time of breach of privacy rights and thereaer. Chitrakar v. Bell TV (Oct. 29, caseLaw CaseLaw is a weekly summary of notable civil and criminal court decisions by the Supreme Court of Canada, the Federal Court of Canada, and all Ontario courts. These cases may be found online in BestCase and other electronic resources from carswell.com. To subscribe, please call 1-800-387-5164.

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